The following contribution to our Shelby County v. Holder symposium comes from Daniel P. Tokaji, the Robert M. Duncan/Jones Day Designated Professor of Law at Ohio State University Moritz College of Law and Senior Fellow at Election Law @ Moritz.
The debate over the constitutionality of Voting Rights Act preclearance has focused almost entirely on whether it lies within Congress’s power to enforce the Fourteenth and Fifteenth Amendments to the Constitution. That’s understandable, especially since the Supreme Court’s cert. grant in Shelby County v. Holder is limited to Congress’s authority under these provisions.
There is, however, another provision of the Constitution that authorizes many – though not all – applications of the VRA’s preclearance requirements. Under the Elections Clause of the Constitution, Congress has broad authority to regulate congressional elections. Given that Shelby County has brought a facial challenge to Sections 4(b) and 5 of the VRA, the existence of an alternative basis for upholding some applications of the statute shouldn’t be overlooked. The Elections Clause is sufficient to prevent facial invalidation of the statute, regardless of how the Fourteenth and Fifteenth Amendment issues are resolved.
Some background on the Elections Clause may be helpful in understanding its relevance to the constitutional issue in Shelby County. The text of Article I, Section 4, Clause 1 of the Constitution provides:
The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.
The Elections Clause has long been understood to give Congress broad power over the regulation of congressional elections. As set forth in this amicus brief from seven election law scholars, including me, the Framers wanted to make sure that state and local officials couldn’t undermine federal elections.
The Supreme Court has consistently interpreted the Elections Clause to give Congress comprehensive authority in this area. In Smiley v. Holm (1932), the Court wrote of the Elections Clause:
It cannot be doubted that these comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns — in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved. And these requirements would be nugatory if they did not have appropriate sanctions in the definition of offenses and punishments.
While Congress has the authority to issue a comprehensive code for congressional elections under the Elections Clause, it may also enact more limited regulations. For example, in Ex Parte Siebold (1879), the Court upheld a federal statute enacted a few years after the Civil War, entitled “An Act to enforce the right of citizens of the United States to vote in the several States of this Union,” under which petitioners were convicted of ballot-box stuffing. The Court characterized the power to regulate congressional elections as “constitutionally paramount,” saying that Congress “has a general supervisory power over the whole subject.” It specifically rejected the argument that Congress must completely displace state election laws in order to exercise its Elections Clause power.
The Elections Clause thus gives Congress the power to make both sweeping and limited regulations governing federal elections. For example, the Court has held that the Elections Clause authorizes federal laws prohibiting voter intimidation (1884) and preempting state primary rules (1997). As Justice Scalia noted in his plurality opinion in Vieth v. Jubelirer (2004), the Elections Clause also empowers Congress to make rules regarding congressional districting. Federal appellate courts have upheld (here, here, and here) the National Voter Registration Act of 1993 (NVRA) as a permissible exercise of Congress’s authority under the Elections Clause.
Congress was cognizant of its authority under the Elections Clause when it first enacted the VRA in 1965 and when it reauthorized the statute in 2006. Justice Black’s lead opinion in Oregon v. Mitchell (1970), upholding certain provisions of the 1970 amendments to the VRA, relied on the Elections Clause.
It’s true that Congress was mostly focused on the Fourteenth and Fifteenth Amendment as authority for the most recent reauthorization. But for constitutional purposes, it’s irrelevant whether Congress explicitly claimed the Elections Clause as a source of authority. As the Court has long held, and recently restated in upholding the Affordable Care Act, the “question of constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.”
Many important applications of the VRA’s preclearance requirements fall squarely within Congress’s Elections Clause power. Those include the application of Section 5 to congressional redistricting plans, as well as the rules regarding voter registration, early voting, and voter identification applied in federal elections. It’s conceivable that the Court could impose new limits on Congress’s Elections Clause powers in Arizona v. Inter-Tribal Council of Arizona, a case involving the NVRA that’s currently pending before it. But it’s unlikely that this case will so drastically alter its jurisprudence as to eliminate the Elections Clause as authority for all applications of VRA preclearance.
To be sure, there are some applications of Section 5 – to state and local redistricting plans, for example – that can’t be justified under the Elections Clause. But remember, Shelby County has brought a facial challenge to the VRA’s preclearance requirements. Such challenges are “disfavored” because they run contrary to established principles of judicial restraint. A facial challenge should be rejected where there are some circumstances in which a statute may constitutionally be applied. Like other local electoral jurisdictions, Shelby County administers federal elections as well as state and local elections. The Elections Clause is therefore a sufficient basis upon which to reject Shelby County’s facial challenge – without considering the scope of Congress’s power under the Fourteenth and Fifteenth Amendments.
One might object that Congress’s authority under the Elections Clause doesn’t empower Congress to treat some jurisdictions differently from others. Shelby County’s challenge focuses on the coverage formula in Section 4(b), which requires certain state and local jurisdictions to obtain preclearance under Section 5 based on registration and turnout data going back as far as 1964. The county argues that this formula accords “unequal treatment” to covered jurisdictions.
The problem with this argument is that the Supreme Court has never suggested that Congress’s Elections Clause power is subject to any such uniformity requirement. To the contrary, courts have upheld federal statutes which bind some state and local jurisdictions but not others, based on criteria set forth in the statute. One provision of federal law unsuccessfully challenged in Siebold, for example, authorized the appointment of election supervisors by federal circuit courts in “any city or town having upwards of twenty thousand inhabitants.” And the NVRA was upheld by federal appellate courts, even though it exempts some states (specifically, those which had election day registration in 1994) from its requirements. In other words, the Elections Clause allows some jurisdictions to be treated differently from others based on statutorily defined criteria.
It’s interesting that the United States hasn’t relied on the Elections Clause in its defense of Sections 4(b) and 5. I don’t know why, but suspect that it’s for strategic reasons. To suggest an alternative basis for upholding some (but not all) applications of the statute might invite the Court to split the baby.
This strategy would make sense if one thought there were a high likelihood of the preclearance requirements being upheld in their entirety under the Fourteenth and Fifteenth Amendment. But the oral argument and subsequent opinion in NAMUDNO v. Holder (2009) provide reason to worry that a majority of Justices won’t be persuaded. To be clear, I’m not saying that’s a foregone conclusion, but it’s hard to see how making the Elections Clause argument appreciably increases the risk of that result.
It’s true that a ruling based only on the Elections Clause would leave open the possibility of VRA preclearance being challenged piecemeal in the future. For example, a covered jurisdiction might challenge the statute’s application to state or local redistricting plans. At that point, the Fourteenth and Fifteenth Amendment questions would have to be addressed. It’s possible that the Court would ultimately conclude that some applications of the statute exceed Congress’s authority as to some state or local jurisdictions. But again, the Court shouldn’t declare VRA preclearance facially unconstitutional, if it concludes that the Elections Clause authorizes some applications of the statute. For supporters of preclearance, that would be a much better outcome than having Sections 4(b) and 5 struck down on their face.
In this case, at least, half a baby is better than no baby.